Navigating Bespoke Appointment Contracts: What Architects Need to Know

When it comes to appointment contracts in architecture, not all agreements are created equal. While many projects rely on standard forms like the RIBA Professional Services Contracts, some clients—particularly those with significant resources or complex, high-value projects—prefer to use bespoke appointment contracts. But what exactly are these contracts, and why should architects approach them with caution?

What Is a Bespoke Appointment Contract?

A bespoke appointment contract is a tailor-made agreement drafted by a client’s legal advisor, designed to address specific project concerns and shift the balance of risk in the client’s favour. Unlike standard RIBA contracts, bespoke forms often include clauses that impose additional duties, limit the architect’s authority, or introduce new obligations that may not be insurable or reasonable.

Why Do Clients Use Bespoke Contracts?

Clients who regularly commission architectural services or oversee complex projects may feel that standard contracts don’t provide sufficient protection. By drafting bespoke appointments, they can:

• Shift more risk onto the architect

• Impose additional or unusual duties

• Address unique project requirements

• Limit the architect’s authority

This makes it crucial for architects and their legal advisors to assess the bargaining power on both sides and negotiate terms that are fair and commercially viable.

The Negotiation Process: How It Works

Negotiations typically begin when the client’s solicitor sends an initial draft of the contract. Architects can propose amendments in several ways:

• Manual Handwritten Changes: Not recommended due to potential confusion.

• Electronic Mark-Up: Using tracked changes to show proposed edits.

• Electronic Schedule of Comments: Listing clause numbers alongside comments—this is the clearest and most preferred method.

Before signing, architects should always review the final draft in both clean and tracked versions to ensure all negotiated changes are accurately reflected.

Common Pitfalls in Bespoke Contracts

Bespoke contracts can introduce several risks and challenges for architects, including:

• Unfamiliar Clauses: Hidden obligations or legal traps that go beyond standard practice.

• Imbalanced Risk: Requirements for fitness-for-purpose, unlimited liability, or broad indemnities.

• Ambiguity: Poorly drafted clauses that lead to misunderstandings or disputes.

• Conflicting Terms: Inconsistencies with other project documents, creating confusion over which terms take precedence.

• Intellectual Property Rights: Risk of losing copyright unless properly compensated.

Real-World Examples

• Additional Services: Clauses may restrict the architect’s ability to claim extra fees, even for legitimate additional work. Wording like “not foreseeable” can unfairly shift responsibility onto the architect.

• Duty of Care: Clients may expect an enhanced duty of care beyond the legal standard. While this is common in bespoke contracts, architects should try to limit their duty to what is insurable and reasonable.

• Collateral Warranties and Third Party Rights: Obligations to provide warranties to multiple parties can become onerous, both in terms of liability and management time. It’s wise to seek limits on the number and scope of such warranties.

• Indemnity Clauses: Broad indemnities can expose architects to claims even if they haven’t acted negligently. Since many professional indemnity (PI) policies don’t cover such clauses, architects should push to limit or remove them.

• Copyright: By default, architects own the copyright to their designs. Any transfer or broad license should be carefully negotiated, ideally linking client use to payment of fees.

Key Areas to Review in Any Bespoke Appointment

When faced with a bespoke contract, architects should scrutinize the following:

• Scope of Services: Is it clear and free of hidden obligations?

• Standard of Care: Are you being asked to guarantee a result or simply exercise reasonable skill and care?

• Liability and Indemnity: Are there caps on liability? Are you being asked to indemnify the client for all losses?

• Insurance Requirements: Do they align with your policy?

• Payment Terms: Are they fair and compliant with construction law?

• Termination Provisions: What happens to your fees if the client terminates?

• Dispute Resolution: Are the mechanisms practical and fair?

Best Practices for Architects

• Never assume familiar wording means the same as in standard forms—every word matters.

• Propose amendments to restore a fair balance of risk and responsibility.

• Use standard forms as a benchmark for what’s reasonable.

• Keep a clear record of all negotiations, agreed changes, and the final signed contract.

• Ensure all documents are properly signed, dated, and stored for future reference.

Conclusion

Bespoke appointment contracts offer clients flexibility but often at the architect’s expense. By understanding the risks, negotiating effectively, and maintaining thorough documentation, architects can protect themselves while delivering value to their clients. Always approach these contracts with caution, and don’t hesitate to seek legal advice when needed—your business and reputation may depend on it.